The Expressive Limits of International Criminal Justice: Victim Trauma and Local Culture in the Iron Cage of the Law

2019 ◽  
Vol 19 (6) ◽  
pp. 1014-1045
Author(s):  
Barrie Sander
Keyword(s):  
Criminal Justice ◽  
Cultural Values ◽  
Complex Terrain ◽  
Critical Reflection ◽  
International Criminal ◽  
International Criminal Justice ◽  
Criminal Courts ◽  
Cultural Assumptions ◽  
Iron Cage ◽  
Point Of Departure

Scholarship within the field of international criminal justice has increasingly turned towards expressivist strands of thought, characterised by a concern for the didactic qualities of international criminal courts. Taking expressivism as its point of departure, this paper critically examines the expressive limits of international criminal justice. Specifically, the paper examines the extent to which international criminal courts have been expressively constrained both in their ability to alleviate the traumas of victims and in their receptivity to the local cultural values of conflict-affected communities. The paper argues that a critical reflection on the expressive limits of international criminal courts, paying particular attention to their retributive core and cultural assumptions, can help such institutions better navigate the complex terrain in which they operate, reducing aspirations concerning what they should be expected to achieve in practice and improving their legitimacy amongst local communities.

Institutional Expression

2020 ◽  
pp. 165-249
Author(s):  
Carsten Stahn
Keyword(s):  
Criminal Justice ◽  
International Criminal ◽  
Speech Act ◽  
Speech Act Theory ◽  
Community Relations ◽  
International Criminal Justice ◽  
Criminal Courts ◽  
Mutual Learning ◽  
Expressive Meaning ◽  
Institutional Action

The chapter demonstrates that the very act of reacting to atrocities, and institutionalization itself, has expressive meaning. Institutions rely on symbolism, rituals, and mimetic practices in order to ensure their own survival. This also applies to international criminal courts and tribunals. Sometimes the ‘medium is the message’. Throughout history, the establishment of institutions has sent different signals, such as memory and remembrance, shame and apology, renewal of community relations, hope and belief or protest. International criminal justice relies on action. Speech act theory is helpful to understand the various meanings of institutional action. Acts, such as jurisdictional determinations (e.g. complementarity), preliminary examinations or investigations, arrests, or cooperation create new narrative subjects, entail commands or incentives for action, or convey attitudes. Outreach and legacy strategies involve strong didactic rationales. They are often more geared towards one-sided expression rather than two-way communication or mutual learning

scholarly journals Sixty-Five Years of International Criminal Justice: The Facts and Figures

2013 ◽  
Vol 13 (1) ◽  
pp. 7-41 ◽  
Author(s):  
Alette Smeulers ◽  
Alette Smeulers ◽  
Barbora Hola ◽  
Alette Smeulers ◽  
Barbora Hola ◽  
...  
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
International Criminal ◽  
International Criminal Justice ◽  
Criminal Courts ◽  
Empirical Reality

The international criminal justice system comprises nine international criminal courts and tribunals; six are still operational and three have closed down. On average, they operated for almost nine years apiece and concluded 172 cases in which over 250 judges and 23 chief prosecutors were involved. All in all 745 suspects were indicted, 356 were actually tried and, of these, some 281 defendants were convicted. Currently 34 suspects are on trial and 22 are still at large. The ‘average’ convicted perpetrator is male, aged 40 and a member of a military or paramilitary organisation from Europe, Asia or Africa who is acting on behalf of his government. These are just some of the facts and figures which we present in this article: an overview of the empirical reality of the international criminal justice system which has currently been functioning for just over 65 years.

The Legitimacy of International Criminal Tribunals and the Current Prospects of International Criminal Justice

2012 ◽  
Vol 25 (2) ◽  
pp. 491-501 ◽  
Author(s):  
ANTONIO CASSESE
Keyword(s):  
Criminal Justice ◽  
International Criminal Court ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
Criminal Court ◽  
The Other ◽  
International Criminal Justice ◽  
Criminal Courts ◽  
Complex Concept ◽  
International Criminal Tribunals

AbstractHaving identified the differences between the concept of legality and the much more complex concept of legitimacy, the author scrutinizes the legality and the legitimacy of the existing international criminal tribunals. Their legality has been put in doubt only concerning the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Special Tribunal for Lebanon (STL), but the criticisms have been or could be overcome. Assessing the legitimacy of these tribunals is instead a more difficult task. In fact, misgivings have been voiced essentially concerning the legitimacy of the ICTY and the STL, but not the International Criminal Court (ICC) and the other international criminal courts. The legitimacy of the STL in particular deserves to be discussed: even assuming that the STL initially lacked some forms of legitimacy, it could achieve it – or confirm it – through its ‘performance legitimacy’. The author then suggests what the realistic prospects for international criminal justice are. Convinced as he is that it is destined to flourish even more, he tries to identify the paths it is likely to take in future years.

scholarly journals Trials as Messages of Justice: What Should Be Expected of International Criminal Courts?

2016 ◽  
Vol 30 (4) ◽  
pp. 429-447 ◽  
Author(s):  
Tim Meijers ◽  
Marlies Glasius
Keyword(s):  
Criminal Justice ◽  
Final Section ◽  
International Criminal ◽  
Legal Theory ◽  
International Criminal Justice ◽  
Criminal Courts ◽  
Judicial Process ◽  
Limited Success ◽  
Contemporary Practice

This article addresses the question what—if anything—we can and should expect from the practice of international criminal justice. It argues that neither retributive nor purely consequentialist, deterrence-based justifications give sufficient guidance as to what international criminal courts should aim to achieve. Instead, the legal theory of expressivism provides a more viable (but not unproblematic) guide. Contrary to other expressivist views, this article argues for the importance of the trial, not just the punishment, as a form of expressivist messaging. Specifically, we emphasize the communicative aspect of the judicial process. The final section, acknowledging the limited success of international criminal justice so far in terms of fulfilling its expressivist potential, diagnoses the main obstacles to, and opportunities for, expressivist messaging in the contemporary practice of international criminal justice.

EDITORIAL: Between ‘Faith’ and ‘Facts’: By What Standards Should We Assess International Criminal Justice?

2012 ◽  
Vol 25 (2) ◽  
pp. 251-282 ◽  
Author(s):  
CARSTEN STAHN
Keyword(s):  
Criminal Justice ◽  
International Criminal ◽  
International Criminal Justice ◽  
Criminal Courts ◽  
International Courts ◽  
Prodigal Son ◽  
Local Responses ◽  
Fact Finding ◽  
Legal Example

AbstractThe traditional vision that international courts and tribunals do ‘good’ or create a better world through law is increasingly under question. International criminal justice started largely as a ‘faith’-based project, but is increasingly criticized in light of its actual record and impact. This essay examines this journey and, in particular, the role of ‘faith’ and ‘fact’ in the treatment and assessment of international criminal courts, through four core themes (‘effectiveness’, ‘fairness’, ‘fact-finding’, and legacy’) addressed in André Gide's version of the parable of The Return of the Prodigal Son. It argues that, in its ‘homecoming’, international criminal justice would benefit from a greater degree of realism by openly accepting its limitations and embracing its expressivist function. It cautions at the same time against exclusively quantitative understandings of impact, arguing that the power of international courts and tribunals lies not so much in their quantitative record as in their role in setting a moral or legal example or shaping discourse. It concludes that a better match between ‘idealism’ and ‘realism’ requires greater attention to the interplay between ‘international’, ‘domestic’, and ‘local’ responses to conflict, as well as recognition of their legitimate differences.

Corporations before International Criminal Courts: Implications for the International Criminal Justice Project

2016 ◽  
Vol 30 (1) ◽  
pp. 221-240 ◽  
Author(s):  
JOANNA KYRIAKAKIS
Keyword(s):  
Criminal Justice ◽  
International Law ◽  
Criminal Law ◽  
Global Justice ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
International Criminal Justice ◽  
African Union ◽  
Criminal Courts

AbstractThe debate over whether the International Criminal Court should have jurisdiction over corporations has persisted over the years, despite the failure of the legal persons proposals at Rome. For its part, the Special Tribunal for Lebanon determined that it has jurisdiction over corporations for the purpose of crimes against the administration of the Tribunal, albeit not for the substantive crimes over which it adjudicates. Most recently, the African Union has adopted a Protocol that, should it come into operation, would create a new international criminal law section of the African Court of Justice and Human and People's Rights with jurisdiction over corporations committing or complicit in serious crimes impacting Africa. In light of the enduring nature of the proposal that international criminal institutions should directly engage with the problem of commercial corporations implicated in atrocity, this article explores the possible implications for the international criminal justice project were its institutions empowered to address corporate defendants and prosecutors emboldened to pursue cases against them. Drawing on the expressive goals of international criminal justice and concepts of sociological legitimacy, as well as insights from Third World Approaches to International Law, the article suggests that corporate prosecutions, where appropriate, may have a redeeming effect upon the esteem in which some constituent audiences hold international criminal law, as a system of global justice. The article's thesis is then qualified by cautionary thoughts on the redemptive potential of corporate prosecutions.

The expressive turn of international criminal justice: A field in search of meaning

2019 ◽  
Vol 32 (4) ◽  
pp. 851-872
Author(s):  
Barrie Sander
Keyword(s):  
Criminal Justice ◽  
International Criminal ◽  
Expressive Power ◽  
International Criminal Justice ◽  
Criminal Courts ◽  
Instrumental Value ◽  
Institutional Contexts ◽  
Over Time

AbstractAs the glow that accompanied the kinetic judicialization of the field of international criminal justice has faded over time, scholars have increasingly turned to expressivist strands of thought to justify, assess, and critique the practices of international criminal courts. This expressive turn has been characterized by a heightened concern for the pedagogical value and legitimating qualities of international criminal courts. This article develops a unique typology of expressivist perspectives within the field of international criminal justice, distinguishing between three strands of expressivism: instrumental expressivism, which concerns the justification of different practices of international criminal courts in terms of the instrumental value of their expressive qualities; interpretive expressivism, which concerns the identification of expressive avenues for improving the sociological legitimacy of international criminal courts; and critical expressivism, which concerns the illumination of the expressive limits of international criminal courts, as well as unveiling the configurations of power that underpin the messages and narratives constructed within such courts in different institutional contexts. Reflecting on the limitations of these perspectives, the article elaborates a nascent strand of expressivism – strategic expressivism – which concerns whether and how different actors in the field may harness the expressive power of international criminal justice in line with their strategic social and political agendas.

Is the Opposition Between Civil Law and Common Law Criminal Procedure the Lock or Key to International(ized) Tribunals’ Success?

2020 ◽  
pp. 282-294
Author(s):  
Leïla Bourguiba
Keyword(s):  
Criminal Justice ◽  
International Criminal ◽  
Common Law ◽  
Civil Law ◽  
International Criminal Justice ◽  
Criminal Courts ◽  
Paris Declaration ◽  
International Crimes ◽  
Rules Of Procedure ◽  
Atrocity Crimes

This chapter offers a comparative consideration of the efficacy of civil versus common law in adjudicating atrocity crimes, using the example of the French war crimes unit prosecution practice. On 16 October 2017, representatives of international criminal courts and tribunals met in France at the French National School for the Judiciary. Their meeting resulted in the signing of a Declaration on the effectiveness of international criminal justice (Paris Declaration). In gathering professionals from international courts and tribunals where the need to comply with founding texts and specific procedures can challenge those who, by habit, comfort, or conviction, draw on their national practise to interpret and apply the rules of procedure, the question of common versus civil law practice was the implicit focus. The Paris Declaration was adopted at a time when disappointment towards the ‘efficiency’ of international(ized) tribunals and courts is high. They are considered too slow and too costly. In this context, it is not unusual to hear that international trials would be better managed and more efficient if they borrowed more elements of ‘civil law’ on their ‘common law’ foundation. The chapter then describes the main characteristics of each procedural system to help identify which procedural model has been favoured before international(ized) tribunals. It also asks whether national investigation and prosecution of core international crimes are more efficient.

The Crime Question

2021 ◽  
pp. 107-187
Author(s):  
Barrie Sander
Keyword(s):  
Criminal Justice ◽  
International Criminal ◽  
Institutional Context ◽  
Historical Narratives ◽  
International Criminal Justice ◽  
Relative Importance ◽  
Criminal Courts ◽  
Judicial Decisions ◽  
Definition Of ◽  
Selection Of

This chapter examines the practices that have influenced the range and definition of crimes adjudicated within international criminal courts and the implications for the scope and content of the historical narratives constructed in their judgments. The chapter reveals how the range and definition of crimes have been shaped by different actors at particular junctures within international criminal justice processes, including the drafting of statutory frameworks, the selection of charges to include in indictments, and the interpretation of crime categories in judicial decisions and judgments. Crucially, the relative importance of these junctures and the relative influence of different actors have tended to vary depending on the institutional context in which struggles for control over the selection and meaning of categories of crime have been conducted. The chapter concludes by identifying forms of criminality that have consistently been marginalised within international criminal courts despite falling within their subject-matter jurisdiction.

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